The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1887-03-16

elected. During the continuance of the
contest some of the friends of Mr.. Tilden,
becoming discouraged with the prospect of
obtaining favorable decision otherwise,
in his behalf, inaugurated movement to
have Congress pass an act comforting juris
diction over all the matters in dispute upon
some court of the United States, and au-
tholizing such court to determine all ques-
tions of title arising out of the conflicting
claims of the contestants. But after con-
siderable debate, and very general consul
tation, an informal, but none the less final
and decisive, conclusion was reached by
those feeling themselves most interested,
that. the contest was, in all its essential fea-
lures, a political contest, the decision of
which the Constitution had devolved ex-
clusively upon the two houses of Congress
and that consequently Congress could not
convert it into a judicial question, and
confer upon court the power to hear and
to finally determine it.
1.-THE conclusion thus informally reached
has since been generally accepted and ac-
Quicesed in by the country, as the more
recent debate in Congress on the subject
will fully establish. Moved and quickened
by the events attending that remarkable
contest, Congress has, within the past few
months, enacted a law specifically provid-
ing for the manner in which all contests
concerning the election of either President
or Vice-President shall hereafter be settled
by the two Houses of that body, and the
exclusive power of Congress to determine
all such contests will probably never again
be considered an open question. If any
person will take the trouble to compare the
several sections of our State Constitution
having reference to the election and induc-
tion into Office of Governor and Lieuten-
ant-Governor with the corresponding pro-
visions of the Constitution of the United
States concerning the election and induc-
tion into Office of President and Vice-Pre
dent he will readily perceive that all mat
tiers in any manner affecting the election
and title of Governor and Lieutenant-Gov-
ernor are more expressly conferred upon
the General Assembly than are similar
matters touching the election and title of
President and Vlce-President devolved
upon Congress.
"a TO some features of the difference
between political and judicial contro-
versy, see the case of Luther VS.. Borden,
Howard, L. S. 1.
81 have, therefore, believed from the first,
and further investigation has ripened that
belief into an imperative conviction, that
the court below did not have, and that
neither it nor any other court OF the State
could, under the Constitution, have con-
ferred upon it Jurisdiction over the ques-
tion as TO whether any person has been
lawfully elected Governor or Lieutenant
Governor. The consequent improperly of
any member of this court, who had reached
the same or a similar conclusion, express
ing al opinion upon the direct ques-
tion to whether the appellant
holds a valid claim to the Office of Lieu
tenant. Governor. and thus endeavoring to
forestall and control the action of the Cen
eral Assembly, which alone, as we believe,
has power to decide the question, appears
to me to be too manifest to require extend
ed comment. If this court, in common
with the other courts Of the State, has no
jurisdiction over the subject matter of the
appellants claim to Office, then any opin-
ion we might give, however unanimously,
on the subject matter of that claim. could
be at most only advisory, But this court
is neither required nor authorized 10 give
merely advisory opinions. The Attorney
General is the law officer of the State pro-
vided for that purpose. He is charged with
the duty of giving advisory opinions at the
request of the Governor or any other State
officer, or of either house of the General
Assembly. (R. S. 1881, sec. 5,667.)
'The late Attorney General, several
months before the last general election
gave an advisory opinion that there was
then vacancy in the Office of Lieutenant
Governor, and that the election was one
which could be filed at that election. The
State Senate acting upon its own Judgment,
rs it had the power to do, and in accordance
with the independent views of majority
of its members, came to a conclusion en-
tirely adverse to that reached by the At
torpey-Genersl, and proceeded with the
business of the session accordingly. If this
court, whether acting unanimously or
through a majority of its members ouly,
had at the former hearing assumed to de-
eide, notwithstanding our announced want
OF jurisdiction over the question in accord
ance with the opinion given by the At
torney-General, our decision would have
afforded the Senate no authoritative
reason for changing the line of policy
which it had adopted, and we have no
assurance that under the circumstances,
any such a change of policy would have
resulted. On the contrary, If acting as
above, we had assumed to decide that the
alleged election for the appellant was in
valid. our decision would not have bound
the House of Representatives, which from
the first recognized the appellant as the
lawfully elected Lieutenant-G Governor.
treated by that body as an Intrusion upon
its exclusive authority as a coordinate
branch OF the General Assembly. Thus
whatever opinion we of the majority might
have announced would, in the very nature
of the controversy, have become new
cause of evaporation between the two
houses and would have tended to chrystal
ize more firmly the disorg anization which
already existed between them.
ut was, as it seems to me, unreasonable
to expect that, in most exciting political
crisis like that through which the General
Assem- bly, has just passed, and in relation
to most Inn portant and momentarily over
shadowing question, the opinion of an At
torney General, or the voluntary extra
judicial and merely individual views of
any Judge, or set of Judges, would have
been accepted aS fnality by those repre-
senting adverse interests, or holding radi-
cally different views.
"Then, too, the promulgation of any ma
jority opinion upon the merits would have
needlessly connected this Court with an
exciting and bitter political controversy,
which it had no power to control or even
to mitigate in the smallest degree. Those
of us who think we have no power to pass
upon the appellants title ought certainly
not to have been expected to 60 out of our
way to give it moral support on the one
side, or to merely besmirch it on the other.
GAS TO those of our number who believe
the courts of the State have Jurisdiction
over the subject matter of this proceeding,
there.was an evident propriety in their ex-
pressing their views on the merits of the
contest for the information of those most
interested, as well as for that of the in
ferior courts; but for those of us who main
tain an entire want of jurisdiction, COM
mon consistency enioined a discreet and